Who has the power to sell
In a trust, the trustee owns the house on behalf of the beneficiaries, so the trustee is the seller. That is the main reason people put a house in a trust: when the person who created it dies, nobody needs to open a probate case to sell it.
Who the trustee is depends on timing:
- While the creator (settlor) is alive, they are usually their own trustee and sell like any owner, signing as trustee.
- After the settlor dies or becomes unable to act, the successor trustee named in the trust takes over.
- If several co-trustees are named, the trust says whether all must sign or a majority can act.
First check that the house is actually titled in the trust. Pull the last recorded deed. If it names the parent individually, not “as trustee,” the house is probably not in the trust and may need probate, or a transfer on death affidavit if one was recorded. A pour-over will that leaves everything to the trust still has to go through probate to move the house in.
Recording the successor trustee affidavit
When a trustee dies, resigns or is removed, the public record needs to show who now holds title. R.C. 5302.171 requires the successor or remaining trustee to file an affidavit with the county auditor and county recorder as soon as is practical. The affidavit:
- names the prior trustee and any co-trustees;
- lists the names and addresses of all current trustees;
- references the recorded deed that put the house in the trust;
- includes the legal description of the property.
The affidavit isn’t needed if the trust instrument itself, or a memorandum of trust under R.C. 5301.255 that sets out the succession, is already recorded. Failing to file it doesn’t affect the trustees’ title, but no title company will insure a sale until the chain is clear. A Stewart Title underwriting bulletin notes the deadline used to be 30 days and was changed to “as soon as practical.”
The certification of trust the title company asks for
Instead of handing a buyer the whole trust, with every family detail in it, Ohio lets the trustee give a short certification of trust under R.C. 5810.13. The Butler County Probate Court’s version of the form shows what it covers:
- that the trust exists and when and by whom it was created;
- the settlor and the currently acting trustees, with addresses;
- the trustee’s powers;
- whether the trust is revocable or irrevocable, and who can revoke it;
- how many co-trustees are acting and how many must sign;
- that the trust hasn’t been revoked or amended in a way that makes the certification wrong.
The trustee signs it under oath. The title company may still ask for excerpts of the trust, usually the pages that name the trustee and grant the power to sell.
A trustee’s sale, step by step
Once the paperwork is in order, a trust sale is close to an ordinary sale. A typical order:
- Record the successor trustee affidavit and the death certificate with the county.
- Get a value. A date-of-death appraisal helps with taxes and with treating beneficiaries fairly.
- Keep the house insured, secured and maintained. A vacant house may need a different policy, so see the vacant house insurance guide.
- Sign the purchase agreement as trustee.
- Give the title company the certification of trust, the affidavit and the deed into the trust.
- Sign a trustee’s deed at closing. Any mortgage is paid from the proceeds.
- Deposit the net proceeds in a trust account and distribute them under the trust.
There is no court approval of the price, unlike a probate land sale. R.C. 5302.30 also exempts a transfer by a fiduciary administering a trust from Ohio’s residential disclosure form.
What a trustee owes the beneficiaries on a sale
Freedom from court supervision doesn’t mean freedom from duties. A trustee has to act loyally and prudently for the beneficiaries, and that shapes how the house is sold:
- No self-dealing without clear permission. A trustee who wants to buy the house personally, or sell it to a relative, needs the trust’s authority or the beneficiaries’ informed consent, and often a lawyer’s advice.
- A reasonable price. An appraisal, a broker’s opinion or several offers show the price was fair.
- Keep beneficiaries informed. Tell them the house is being sold and on what terms. Surprises lead to disputes.
- Account for the money. Keep the closing statement and show where the proceeds went.
If beneficiaries disagree about selling, the trustee usually still decides, within the trust’s terms. Our page on selling when heirs disagree covers how those conversations tend to go.
Taxes, liens and Medicaid on a trust house
Three issues follow the house into the trust:
- Basis. Section 1014(b)(2) of the Internal Revenue Code treats property in a trust the decedent could revoke at any time as acquired from the decedent. The basis is generally its value at death, so a quick sale often shows little gain. See the inherited house capital gains guide.
- Mortgage. A mortgage stays on the house. Federal law, 12 U.S.C. 1701j-3(d)(8), lets an owner move the house into a living trust where they remain a beneficiary without triggering the due-on-sale clause.
- Medicaid estate recovery. Ohio Administrative Code 5160:1-2-07 includes property passing by living trust in the estate Ohio can recover from. See the Medicaid estate recovery guide.
An Ohio trust and estates attorney can confirm the trustee’s powers before you sign a contract. If the house needs work and the beneficiaries want a fixed closing date, our inherited house page explains how a direct sale works with a trustee signing.
